Carl Levin

Mr. LEVIN

Mr. LEVIN. Madam President, the amendment I now offer, along with Senators Graham and McCain, would modify the procedures for the handling of classified evidence by military commissions. This is language that was requested by the administration witnesses at our hearing on military commissions procedures a few weeks ago. We have worked closely together, and we have worked closely with the administration on the language. It is our understanding that this amendment will fully address the administration's concerns. It has the support of the Justice Department and the Department of Defense. Section 1031 of the bill, which addresses military commissions, is based on the standard established by the Supreme Court in the Hamdan case that military commissions should be conducted in a manner consistent with the procedures applicable in trials by courts-martial, and that any deviation from those procedures be justified by ``evident practical need.'' For this reason, the procedures now in the bill for the handling of classified information are based on the procedures established in the Uniform Code of Military Justice. However, the witnesses at our July 7 hearing on military commissions made a persuasive case that the procedures for the handling of classified information in Federal court--the Classified Information Procedures Act, or CIPA--would provide a better model for handling classified information. The reason is, the Federal courts have far more experience handling classified information and far more precedent applicable to the difficult issues raised by classified information in detainee cases. DOD general counsel Jeh Johnson explained the issue as follows: [W]e note that the legislation incorporates certain of the classified evidence procedures currently applicable in courts-martial, where there is relatively little precedent and practice regarding classified information. Mr. Johnson continues: We in the administration believe that further work could be done to codify the protections of classified evidence, in a manner consistent with the protections that now exist in Federal civilian courts. We believe that those protections-- -- Referring to the Federal civilian court protections---- would work better to protect classified information, while continuing to ensure fairness and providing a stable body of precedent and practice for doing so. VADM Bruce McDonald, the Judge Advocate General of the Navy, testified in a very similar way. He said: Section 949d provides for the use of rules of evidence in trials by general courts-martial in the handling of classified evidence. This is consistent with our overall desire to use those procedures found within the UCMJ . . . whenever possible. However, experience has shown that practitioners struggle with a very complex and unclear rule within the Military Rules of Evidence. The military rules do not have a robust source of informative or persuasive case law. Frankly, prosecutions using Military Rule of Evidence 505 are rare. In developing the rules for the handling of classified material during a military commission, it would be more prudent to rely upon the Classified Information Procedures Act (CIPA) used in Article III courts as a starting point. Since the time of the hearing, we have been working on a bipartisan basis with the administration to produce new language on the handling of classified information, consistent with the recommendations of our witnesses. In accordance with those recommendations, and our own thinking and discussion, the language in the amendment we are considering today tracks very closely with CIPA. In a few areas, we have chosen to codify standards that are applicable case law under CIPA to provide additional clarity. The amendment is consistent with the intention of the bill to apply established procedures to military commissions and to deviate from those established procedures, where justified, by evident practical need. There is an evident practical need here. We have a good experience under CIPA, and we decided that is the better model to follow. We also believe the procedures in this amendment will facilitate the handling of classified information in trials by military commissions in a way that is fair to both sides. I have a letter from the Department of Justice on this matter which I ask unanimous consent to have printed in the Record.

Mr. LEVIN. Again, I thank Senator Graham and Senator McCain. Senator Graham is an expert we all look to in matters such as this. He has not only personal experience but he has a vast amount of personal knowledge from study, as well as his own experience in this area, and it is invaluable to us. It does help make possible the conclusion we offer the body.

Mr. LEVIN. Mr. President, I suggest the absence of a quorum.

Mr. LEVIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEVIN. Mr. President, there is now pending an amendment that I have offered on behalf of myself, Senator Graham, and Senator McCain relative to the protection of classified information; is that correct?

Mr. LEVIN. Mr. President, I think we are now ready to vote on this amendment.

Mr. LEVIN. Mr. President, I move to reconsider the vote.

Mr. LEVIN. The pending matter now would be to return to the Akaka amendment; is that correct?

Mr. LEVIN. Mr. President, I yield the floor.

Mr. LEVIN. Mr. President, let me add my thanks to the Senator from Hawaii. He is doing this for the good of the order to permit us to get on with the bill. He knows how important this is. I appreciate his willingness to withdraw the amendment at this time. It is very much appreciated by all of us. I hope something good could come out of conference. I yield the floor and suggest the absence of a quorum.

Mr. LEVIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEVIN. Mr. President, I ask unanimous consent that Senator Hagan be recognized to speak on a previous amendment for up to 5 minutes.

Mr. LEVIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEVIN. Mr. President, I ask unanimous consent that the Kyl amendment be temporarily set aside and that the following four amendments then be in order: the Sessions amendment, No. 1657, which is going to be modified and which I understand will not require a rollcall vote; the Isakson amendment, No. 1525, which would then be called up and I understand would require some debate; the Lieberman amendment, No. 1650, which I also understand may be modified; and then the next amendment after that, which I thought I could enumerate, but I cannot now, would be a Democratic amendment and would then be in place; that no amendments would be in order to any of the above amendments.

Mr. LEVIN. I thank the Chair. Mr. President, I suggest the absence of a quorum.

Mr. LEVIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEVIN. Mr. President, let me modify my previous unanimous consent agreement: that prior to those three amendments being called up, we take up the Lincoln amendment, No. 1487, which I understand has been cleared. Again, as to the other three amendments we identified for debate, no amendments will be in order to any of those amendments.

Mr. LEVIN. Mr. President, it is now my understanding that under that UC, we would take up Lincoln amendment No. 1487. I am wondering whether the Senator from Arkansas would like to have one quick minute to explain her amendment.

Mr. LEVIN. Mr. President, first let me thank Senator Lincoln for this amendment. The linkage of the National Guard and States and our kids is a very powerful link indeed. I have seen this up close and personal because I am sort of the godfather of the STARBASE Program, which started in Michigan at Selfridge Air National Guard Base, and it has spread. While this program which Senator Lincoln is so deeply involved with, and her cosponsors, is not an outgrowth of that program, it is very similar in terms of its purpose to link our National Guard and the inspiration they can provide and the technical skills they can provide our children with. So I thank her for her amendment and hope it will be promptly adopted.

Mr. LEVIN. Mr. President, I move to reconsider the vote.

Mr. LEVIN. Mr. President, I believe the next amendment is the Sessions amendment.

Mr. LEVIN. Mr. President, after a very brief comment, I am going to suggest a quorum be called. This amendment has been significantly modified from its original form. It has been modified in a way which I believe is now satisfactory. It addresses interrogations by the military, by defense agencies. It does not involve interrogations by the Department of Justice, as I understand it.

Mr. LEVIN. The Department of Justice is not involved in the warnings that are involved here. It especially provides it must be applied in a manner consistent with the constitutional requirements. With these changes, I am satisfied, but I note the absence of a quorum.

Mr. LEVIN. Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. LEVIN. Mr. President, I now ask unanimous consent that the pending Sessions amendment, as modified, be temporarily laid aside and we now proceed to the next item under the unanimous consent agreement, which would be the amendment of Senator Isakson.